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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on the General Counsel's motion for
reconsideration of the Authority's decision in 54 FLRA 316 (1998) (Member
Wasserman, dissenting in part). The Respondent did not file an opposition to
the motion.

Section 2429.17 of the Authority's Regulations permits a party who can
establish extraordinary circumstances to request reconsideration of the
Authority's decision. For the reasons that follow, we grant the General
Counsel's motion. On reconsideration, we reaffirm our decision in 54 FLRA
316.(1)

II. The Decision in 54 FLRA No. 39

This unfair labor practice case was decided by the Authority based on
the parties' stipulation of facts under section 2429.1(a) of the Authority's
Regulations. The parties agreed that no material issue of fact exists. The
Authority stated that both the Charging Parties and the Respondents filed
briefs with the Authority. The Authority noted that the General Counsel did not
file a brief.

In 54 FLRA No. 39, the Authority concluded that the Respondent
Headquarters did not violate section 7116(a)(1) and (5) of the Statute, as
alleged, by interfering with the local bargaining relationship between the
Respondents Nevada Guards and their respective Unions. In particular, the
Authority found nothing in two communications from the Respondent Headquarters
to the Respondents Nevada Guards(2) that could be construed as directing the Nevada Guards to
refuse to incorporate the Panel-imposed official time provision into their
respective collective bargaining agreements. The Authority dismissed this
portion of the complaint. SeeNational Guards, 54 FLRA at 323.

With respect to the Respondents Nevada Guards' refusal to implement a
Panel-imposed advisory arbitration provision, the Authority found that the
General Counsel met its burden of making a primafacie showing
that the Statute was violated when the Respondents Nevada Guards refused to
incorporate the Panel-imposed provision in their collective bargaining
agreement. The Authority also found that the Respondents failed to rebut this
showing by establishing that the provision was unlawful. Under these
circumstances, the Authority decided that the refusal constituted a violation
of section 7116(a)(1), (5), (6), and (8) of the Statute and ordered the
Respondents to incorporate the advisory arbitration provision into their
collective bargaining agreements. SeeNational Guards, 54 FLRA
at 324.

Finally, with respect to the Respondents Nevada Guards' refusal to
implement a Panel-imposed official time provision, the Authority determined
that the provision was essentially identical to the proposal the Authority
examined in Office of the Adjutant General, New Hampshire National Guard,
Concord, New Hampshire, 54 FLRA 301 (1998) (New Hampshire National
Guard).(3) Because the Respondents
challenged, and the Charging Parties responded, to the Panel-imposed official
time provision on essentially the same grounds as those the Authority
considered in New Hampshire National Guard, the Authority concluded, for
the reasons set forth in New Hampshire National Guard, that the
Panel-imposed official time provision was contrary to law and that the
Respondents refusal to comply with the Panel's order did not violate the
Statute. In reaching this conclusion, the Authority reaffirmed its holding in
New Hampshire National Guard that the use of official time for union
officials to lobby Congress is not prohibited by either 18 U.S.C.
§ 1913 or section 8001 of the 1996 DOD Appropriations Act. The
Authority also reaffirmed its holding in New Hampshire National Guard
that section 8015 of the 1996 DOD Appropriations Act expressly prohibits the
use of official time for this purpose. Accordingly, the Authority dismissed
this portion of the complaint. SeeNational Guards, 54 FLRA at
325.

III. Motion for Reconsideration

In its motion for reconsideration, the General Counsel asserts that,
contrary to the Authority's statement in footnote 2 of its decision in 54 FLRA
316, it did file a brief with the Authority. In support of its assertion, the
General Counsel has provided a copy of its brief, including the certificate of
service and a signed return receipt indicating that the brief was timely filed
with the Authority. Because the Authority, "by its own admission, did not
consider the . . . General Counsel's brief in reaching its decision
. . . the General Counsel moves for reconsideration of the
Authority's decision." Motion for Reconsideration at 2.

In its brief, the General Counsel argues that the Respondent
Headquarters interfered with the bargaining relationship between the
Respondents Nevada Guards and their respective unions in violation of section
7116(a)(1) and (5) of the Statute by advising the facilities that the
Panel-imposed official time provision was contrary to law. The General Counsel
states that, although the Respondent Headquarters did not explicitly direct the
Nevada Guards to refuse to abide by the Panel decision, the communications from
the Respondent Headquarters to the Nevada Guards "were undoubtedly written with
the intent that the local facilities would follow them." Motion for
Reconsideration, Attachment 1 at 21 (General Counsel's Brief).

The General Counsel also asserts in its brief that the Respondents
Nevada Guards violated section 7116(a)(1), (5), (6), and (8) of the Statute by
refusing to incorporate the Panel-imposed official time and advisory
arbitration provisions into their respective collective bargaining agreements.
With respect to the official time provision, the General Counsel states that
the Authority specifically concluded in Department of Health and Human
Services, Social Security Administration and American Federation of Government
Employees, Local 3231, 11 FLRA 7 (1983) that 18 U.S.C. §
1913 does not prohibit union officials from using official time to lobby
Congress. Seeid. at 17. Thus, the General Counsel asserts that
the Respondents Nevada Guards' argument that the official time provision is
contrary to law has been "raised and rejected by the Authority." Id. at
18. With respect to the advisory arbitration provision, the General Counsel
notes that the Respondents Nevada Guards' only claim is that the provision "is
not illegal, it is just unreasonable." Id

IV. Analysis and Conclusions

Under section 2429.17 of the Authority's Regulations, a party seeking
reconsideration after the Authority has issued a final decision or order bears
the heavy burden of establishing that extraordinary circumstances exist to
justify this unusual action. SeeU.S. Department of the Air Force,
375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84,
86-87 (1995) (Scott Air Force Base). In Scott Air Force Base, the
Authority identified a limited number of situations in which extraordinary
circumstances have been found to exist. These include situations where a moving
party has established that the Authority erred in its remedial order, process,
conclusion of law, or factual finding.

In National Guards, 54 FLRA at 317 n.2, the Authority stated
that "the General Counsel did not file a brief." The General Counsel has
provided the Authority with a copy of its certificate of service, including a
signed return receipt, indicating that a brief in this matter was served on the
Authority on October 7, 1996. See Motion for Reconsideration, Attachment
2. As such, the General Counsel has established that the Authority erred in its
process. SeeUnited States Department of Justice, Bureau of Prisons,
Metropolitan Correctional Center, New York, New York, 29 FLRA 482, 483-84
(1987); Portsmouth Naval Hospital, Portsmouth, Virginia, 28 FLRA
1007 (1987). Accordingly, we grant the General Counsel's Motion for
Reconsideration.

We have given full consideration to the General Counsel's brief. Each
of the arguments advanced by the General Counsel was addressed in 54 FLRA 316,
and we find no additional information in the General Counsel's brief that would
have altered our final decision in this case. Accordingly, we reaffirm our
Decision and Order in this matter.

V. Order

On review, we reaffirm our Decision and Order in 54 FLRA 316.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. Member Wasserman joins in the
Authority's decision granting the General Counsel's motion for reconsideration.
However, Member Wasserman reaffirms his separate opinion, dissenting in part,
in Headquarters, National Guard Bureau, Washington, D.C., Nevada Air
National Guard, Reno, Nevada, 54 FLRA 316 (1998) (National
Guards).

2. The term "Nevada Guards" refers to
the Nevada Air National Guard and the Nevada Army National Guard.

3. In New Hampshire National
Guard the Authority concluded that the use of official time for union
officials to lobby Congress was not prohibited by either 18 U.S.C. § 1913
or section 8001 of the 1996 Department of Defense (DOD) Appropriations Act.
However, the Authority found in New Hampshire National Guard that
section 8015 of the 1996 DOD Appropriations Act expressly prohibits the use of
official time for this purpose.